Sally M. Rider, Assistant United States Attorney,
argued the cause for appellee. With her on the brief were
Eric H. Holder, Jr., United States Attorney, John
D. Bates and R. Craig Lawrence, Assistant United
States Attorneys.

Before EDWARDS, Chief Judge, GINSBURG, and TATEL,
Circuit Judges.

Opinion for the Court filed by Circuit Judge
GINSBURG.

Opinion concurring with reservations filed by Chief
Judge EDWARDS.

Dissenting opinion filed by Circuit Judge
TATEL.

GINSBURG, Circuit Judge: Various broadcasters
and public- interest groups representing listeners and
viewers appeal a judgment of the district court dismissing
their constitutional and statutory challenges to the Federal
Communication Commission's scheme for imposing forfeitures
for the broadcast of indecent material. The appellants'
central argument is that the procedures for enforcement set
out in 47 U.S.C. §§ 503(b) and 504(c) lack appropriate
safeguards-including prompt judicial review-which forces
broadcasters to conform with potentially unconstitutional
restrictions upon their speech. We hold that the provisions
at issue are capable of constitutional implementation and
therefore reject the appellants' facial challenge to the
statutes. Though we agree that the FCC's implementation of
its enforcement scheme is potentially troubling in some
respects, we also conclude that the appellants have not
alleged facts sufficient to show that the FCC is currently
applying the statutes in an unconstitutional manner. We
therefore affirm the judgment of the district court.

I. Background

Section 1464 of 18 U.S.C. provides: "Whoever utters
any obscene, indecent, or profane language by means of radio
communication shall be fined not more than $10,000 or
imprisoned not more than two years, or both." In addition,
the FCC may impose a civil forfeiture for each violation of
the same statute. 47 U.S.C. § 503(b)(1)(D); see id.
§ 503(b)(2)(A) (maximum forfeiture penalty of $25,000 for
each violation but not in excess of $250,000 for any
continuing violation). The Commission's imposition of a
penalty for the broadcast of indecent material-defined by
the Commission as "patently offensive descriptions of sexual
or excretory activities or organs as measured by
contemporary community standards for the broadcast medium"-
is not inconsistent with the first amendment. See FCC v.
Pacifica Foundation, 438 U.S. 726 (1978) (in which the
Court also held that the FCC's ruling speech indecent does
not violate 47 U.S.C. § 326, which prohibits censorship by
the agency).

There are limits, however, to the FCC's authority to
proscribe indecent speech. Unlike obscenity, indecent
speech is protected under the first amendment; it may be
regulated only by the least restrictive means necessary to
promote a compelling state interest. Sable
Communications of California, Inc. v. FCC, 492 U.S. 115,
126 (1989). While other cases have examined the substantive
limits of the Government's ability to regulate broadcast
indecency, see Pacifica; Action for Children's
Television v. FCC, ___ F.3d ___, Dkt. No. 93-1092 (D.C.
Cir. June 30, 1995) (en banc), the questions we address
today concern only the procedures by which it does so.

A. The Enforcement Scheme

Section 503(b) of the Communications Act of 1934
authorizes the Commission to impose a forfeiture for the
violation of a Commission order or regulation. While these
provisions govern all types of forfeitures, the appellants
challenge them only insofar as they are used to impose
forfeitures arising from the broadcast of allegedly indecent
material.

The Commission may take either of two routes to impose
a forfeiture. First, the Commission may proceed against a
broadcaster under 47 U.S.C. § 503(b)(3), which authorizes
the Commission to determine the penalty after a hearing,
subject to review in the court of appeals. 47 U.S.C. §§
402(a), 503(b)(3)(A). If, once the forfeiture determination
becomes final, the penalty is not paid, then the Commission
may refer the matter to the Attorney General for collection
in the appropriate district court. 47 U.S.C. §
503(b)(3)(B). In such a collection action, "the validity
and appropriateness of the final order imposing the
forfeiture penalty shall not be subject to review."
Id. While the Commission has stipulated that it
generally does not use the procedures of § 503(b)(3) in
imposing forfeitures for broadcast indecency, it reserves
the authority to do so whenever that would "better serve the
ends of justice." 47 C.F.R. § 1.80(g). Although the
appellants claim that these procedures "ensure neither
prompt administrative adjudication nor prompt completion of
judicial review," they do not seriously challenge their
constitutionality. In any event, because the Commission
does not use § 503(b)(3), we express no view upon the
subject.

The alternative, and in practice the exclusive, means
of imposing a forfeiture for the broadcast of indecent
material is for the Commission to issue a "notice of
apparent liability" to the broadcaster, setting forth the
relevant facts and granting the potentially liable party "an
opportunity to show, in writing, ... why no such forfeiture
penalty should be imposed." 47 U.S.C. § 503(b)(4). The
Commission initiates the forfeiture process only after
receiving a complaint from a listener or viewer. The agency
staff reviews each complaint to determine whether it
suggests that there has been a violation of the ban on
indecent broadcasting. In the course of this review, the
staff may send the broadcaster a Letter of Inquiry seeking
more information or inviting the broadcaster to respond to
the complaint. After further consideration, the Commission
decides whether to issue a Notice of Apparent Liability
(NAL). The stipulated facts in this case concerning the
indecency cases pending when the complaint was filed in
district court show that the Commission issues a NAL
anywhere from six months to three years after the broadcast
to which it relates. During that time, the broadcaster may
or may not be aware that the agency is considering whether
the broadcast at issue contained indecent material.

The NAL is both sent to the broadcaster and published
in the FCC Record. The NAL advises the broadcaster of its
"apparent liability for a forfeiture" in a stated amount for
an "apparent violation of 18 U.S.C. § 1464," and gives the
broadcaster 30 days to pay or otherwise to respond. See,
e.g., Letter to Mr. Mel Karmazin, President, Sagittarius
Broadcasting Corporation, 5 F.C.C. Rcd 7291 (December 7,
1990). Once the broadcaster has responded or the 30 days
have run, the Commission decides whether to order the
forfeiture. As far as we can discern from the current
record, the FCC has never failed to impose a forfeiture
after issuing a NAL.

The Commission's internal guidelines exhort the
responsible officials "to initiate forfeiture orders
expeditiously, generally within 60 days after issuance of
[the NAL]." In the seven instances in which the Commission
imposed a forfeiture between January 1987 and March 1993, it
took from two to 23 months-and an average of approximately
nine months-for the FCC to make its decision.

Generally the forfeiture order recapitulates the
history of the case, addresses any arguments raised by the
broadcaster in response to the NAL, and orders payment of
the forfeiture within 30 days. As with any Commission
order, the broadcaster may petition for reconsideration,
see, e.g., In the Matter of Liability of Sagittarius
Broadcasting Corporation, 7 F.C.C. Rcd 6873 (Oct. 23,
1992), recon. denied, 8 F.C.C. Rcd 3600 (May 20,
1993), recon. denied, 8 F.C.C. Rcd 7975 (Nov. 10,
1993), but it may not obtain judicial review at that stage.
Pleasant Broadcasting Co. v. FCC, 564 F.2d 496 (D.C.
Cir. 1977). If the order becomes final and the broadcaster
does not pay the forfeiture, the Commission issues
progressively stiffer dunning letters, and threatens to
refer and after 165 days does indeed refer the matter to the
Department of Justice "for commencement of [a] civil action
... to recover the forfeiture," in accordance with 47 U.S.C.
§ 504(a). In defending that suit the broadcaster is
entitled to a trial de novo on the question whether its
broadcast was indecent. Id.

At the time the complaint in this case was filed, there
were only three cases in which a broadcaster had held out
long enough for the Commission to refer the matter to
Justice, and the Department had actually filed only one case
in district court. That case was settled after the court
denied defense motions for partial judgment on the pleadings
and for summary judgment. See United States v. Evergreen
Media Corp., 832 F. Supp. 1179 and 1183 (N.D. Ill.
1993). Thus, as far as we can discern, no broadcaster has
yet gone to trial on the merits of an FCC indecency
determination, as envisioned by the statute; every one has
either paid the forfeiture imposed or is awaiting action by
the Commission or the Department of Justice.

Although the issue has never been litigated, we assume
that the general five-year period of limitations on
forfeiture proceedings, see 28 U.S.C. § 2462, would
effectively prevent the Government from filing a civil
action more than five years after the indecent material was
aired. Once an action is timely filed, however, there is no
law limiting the amount of time that may pass before the
case is actually tried. In an extreme case, therefore, a
broadcaster could wait as long as six or seven years from
the time a program was aired until its first opportunity for
judicial review of the Commission's decision that the
material was indecent.

By all indications, a long wait promises to be the rule
rather than the exception. The single forfeiture suit
pending in district court as of March 1993 was filed two
days before the five-year statute of limitations would have
run, and was apparently close to disposition a little more
than a year later. Evergreen Media, 832 F. Supp.
1179 and 1183. Based upon the shortest times reflected in
the record, the earliest a broadcaster could hope to be
brought into court is some two years after the offending
broadcast.

This delay is unfortunate enough, but a number of other
factors serve to exacerbate the effects of uncertainty about
the outcome. First, a broadcaster claiming that a
forfeiture is unconstitutional runs the risk of incurring an
increased forfeiture for any subsequent indecency violation,
see, e.g., Letter to Mr. Mel Karmazin, President,
Sagittarius Broadcasting Corporation, 8 F.C.C. Rcd 2688,
2689 &amp n.3 (December 18, 1992) (giving notice of intent
to impose $600,000 forfeiture in light of "apparent pattern
of indecent broadcasting"), and the possibility that the
Commission will invoke the ultimate sanction, revocation of
the broadcaster's license. See 47 U.S.C. §§ 307-309.
Second, individual Commissioners have taken an active public
role in criticizing broadcasters for airing indecent
material and have let it be known that sanctions for such
activity are likely to increase. Furthermore, the
Commission will not, as a matter of policy, issue a
declaratory ruling on whether a proposed broadcast is
indecent. Thus, the only official guidance about the
Commission's standards of decency available to a broadcaster
is what can be gleaned from published NALs and forfeiture
orders.

Against this background, the parties to this case have
stipulated that:

At a hearing, plaintiff broadcasters would testify that
because of the delays of securing administrative and
judicial determinations in indecency forfeiture proceedings,
and uncertainties as to the permissible scope of FCC
indecency regulation, they attempt to conform their conduct
to the indecency standards articulated by the FCC and its
Commissioners, whether or not they believe those standards
are constitutional, especially because of the various
sanctions to which broadcasters are potentially subject.

The FCC does not concede that this testimony would be
credible, but in light of the district court's grant of
summary judgment to the Commission we must accept the
appellants' version of the facts.

B. The Appellants' Claims

The appellants do not argue that the delay they face in
getting a final decision under the Commission's procedures
is in itself unconstitutional. Rather they claim that the
delay allows the FCC to take action against them without
affording them the procedural safeguards necessary to avoid
any abridgment of their first amendment rights.

The appellants challenge the forfeiture scheme on both
constitutional and statutory grounds. As to the former,
they claim that by forcing broadcasters to comply with the
Commission's unreviewed determinations of indecency the
scheme operates as a system of "informal censorship" similar
to the one held unconstitutional in Bantam Books, Inc. v.
Sullivan, 372 U.S. 58 (1963). As to the latter, they
argue that the Commission also forces broadcasters to comply
with its (perhaps invalid) standards by taking unpaid and
unreviewed forfeiture orders into account in assessing
subsequent forfeitures, see, e.g., Letter to Mr. Mel
Karmazin, President, Sagittarius Broadcasting
Corporation, 8 F.C.C. Rcd 2688, 2689 &amp n.3 (December
18, 1992) (giving notice of intent to impose forfeiture in
light of "apparent pattern of indecent broadcasting"), in
violation of the anti-bootstrapping provision of the Act, 47
U.S.C. § 504(c). That section provides:

In any case where the Commission issues a [NAL] looking
toward the imposition of a forfeiture under this chapter,
that fact shall not be used, in any other proceeding before
the Commission, to the prejudice of the person to whom such
notice was issued, unless (i) the forfeiture has been paid,
or (ii) a court of competent jurisdiction has ordered
payment of such forfeiture, and such order has become
final.

Faced with these same claims and on cross-motions for
summary judgment, the district court held that: (1) it had
subject-matter jurisdiction over the appellants' facial
challenge to the constitutionality of the forfeiture scheme;
but (2) owing to the primary jurisdiction of the Commission,
the court did not have jurisdiction over the appellants'
bootstrapping claim based upon 47 U.S.C. § 504(c); (3) the
plaintiffs representing listeners and viewers do not have
standing to challenge the forfeiture scheme; (4) the
broadcaster plaintiffs that had never been subject to a
forfeiture order do not have standing to challenge the
scheme; (5) as for the three broadcaster plaintiffs that
had received NALs, the claims of the one that was then
challenging the forfeiture in another forum should be
dismissed as a matter of comity, and the claims of a second
were not ripe as no forfeiture had yet been imposed, but the
claims of the third were reviewable; and, finally, (6) the
enforcement scheme is not unconstitutional. Action for
Children's Television v. FCC, 827 F. Supp. 4 (D.D.C.
1993).

II. Jurisdiction

All of the issues raised in this appeal are matters of
law, which we review de novo. We affirm the judgment of the
district court because we come independently to the same
conclusions.

A. The Constitutional Claim

Although none of the parties now questions the district
court's jurisdiction over the plaintiffs' constitutional
claim, we have an independent obligation to consider the
matter, for our own jurisdiction depends upon it. See
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231
(1990). Because a facial challenge to the constitutionality
of a federal statute raises a federal question, the district
court would ordinarily have jurisdiction under 28 U.S.C. §
1331. When an agency is involved, however, the issue is
more complicated.

In Telecommunications Research &amp Action Center
v. FCC, 750 F.2d 70, 72 (D.C. Cir. 1984) (TRAC),
we held that "where a statute commits final agency action to
review by the Court of Appeals, the appellate court has
exclusive jurisdiction to hear suits seeking relief that
might affect its future statutory power of review." In this
case the district court rejected the Commission's argument
that TRAC ousts it of jurisdiction, holding that
there is a general exception to TRAC for
constitutional claims. 827 F. Supp. at 10 n.6. We have
encountered the question of such an exemption before, but we
have not had to resolve it. See Ticor Title Insurance
Co. v. FTC, 814 F.2d 731, 743 (D.C. Cir. 1987) (opinion
of Edwards, J.); id. at 757 (opinion of Green, J.);
Ukiah Adventist Hospital v. FTC, 981 F.2d 543, 550-51
(D.C. Cir. 1992). Nor need we do so today.

The district court was authorized to decide this case
without need for an exception to TRAC because it is
the district court that would have original jurisdiction
over an FCC forfeiture proceeding. In other words, the
district court's jurisdiction over the plaintiffs' challenge
to the constitutionality of the forfeiture statute is no
threat to the jurisdiction of the court of appeals because
review of a Commission order imposing a forfeiture (in the
defense against a collection suit) would itself be in the
district court, not in the court of appeals.

B. The Statutory Claim

In the absence of a definitive ruling by the
Commission, the district court properly declined to address
the plaintiffs' claim that the Commission's administration
of the forfeiture scheme violates 47 U.S.C. § 504(c) because
it takes previous incidents of alleged indecency into
account when assessing a forfeiture. The Congress has given
the district court jurisdiction to review a Commission
decision imposing a forfeiture decision only in the course
of a suit brought by the United States to collect the
forfeiture. 47 U.S.C. § 504(a). Well-established
principles of administrative law, moreover, dictate that the
courts allow the agency to interpret the law before they
determine whether the agency has violated it. See
McCarthy v. Madigan, 112 S. Ct. 1081, 1086-87 (1992)
(recounting reasons for requiring exhaustion of agency
remedies prior to judicial review).

The parties and the district court addressed the
question of the district court's jurisdiction solely as the
reciprocal of the Commission's primary jurisdiction; they
would have been more appropriately concerned with the
plaintiffs' failure to exhaust their administrative
remedies. See generally Reiter v. Cooper, 113 S. Ct.
1213, 1220 (1993) (discussing this distinction). Although
it is true that the Commission did not have a prior
opportunity to apply its expertise to the interpretation of
the statute in the light of the plaintiffs' objections, a
concern addressed by the doctrine of primary jurisdiction,
that is only because the plaintiffs were trying to shortcut
the administrative process-an effort barred by the
requirement that they first exhaust their administrative
remedies. See id.

As the Supreme Court pointed out in United States v.
Western Pacific Railroad Co., 352 U.S. 59, 63-64
(1956):

"Exhaustion" applies where a claim is cognizable in the
first instance by an administrative agency alone; judicial
interference is withheld until the administrative process
has run its course. "Primary jurisdiction" ... applies when
a claim is originally cognizable in the courts, and comes
into play whenever enforcement of the claim requires the
resolution of issues which, under a regulatory scheme, have
been placed within the special competence of an
administrative body.

While the present claim raises a question of first
impression for the Commission, as is often the case as well
where the doctrine of primary jurisdiction applies, see,
e.g., Ricci v. Chicago Mercantile Exchange, 409 U.S. 289
(1973), that does not remove it from the ambit of the
exhaustion requirement; indeed, the novelty of the question
of statutory interpretation is an additional reason that the
court should allow the administrative process to run its
course before taking the matter into its own hands.

Regardless of the label employed, however, the
substance of the matter is clear: it would be premature for
a court to interpret the statute in a void, i.e., without
the agency itself-as opposed to the lawyers defending the
agency in court-having done so first. In this case there
is not even an allegation before the court that the agency
violated the statute in any particular case. The closest
the plaintiffs come is the stipulation that "[i]n
determining whether to increase the amount of a forfeiture
because of a pattern of indecent broadcasting, the FCC has
twice cited prior alleged indecent broadcasts that are the
subject of contested and judicially unreviewed indecency
forfeitures." See Letter to Mr. Mel Karmazin, President,
Sagittarius Broadcasting Corporation, 8 F.C.C. Rcd 2688,
2689 &amp n.3 (December 18, 1992); Letter to Evergreen
Media Corp., 8 F.C.C. Rcd 1266, 1267 &amp n.5 (February
25, 1993). So far as we are informed, however, in neither
of those cases had the Commission imposed an increased
forfeiture upon the basis of the prior allegations. The
district court in this case was in no position even to
consider the propriety of the forfeitures in those cases:
the amount of each contemplated forfeiture was clearly
within the limit authorized by the statute, and the agency
had yet actually to impose it.

The broadcasters involved in any pending forfeiture
cases are, of course, free to make their own § 504(c)
arguments before the agency (and again before the district
court if necessary). The Commission itself may then adopt
or not, as it thinks best, agency counsel's current
litigation position, and we presume it will also then
provide an explanation for its policy choice.

In a strikingly similar situation, Judge Sneed once
wisely observed:

The position of the FCC in this lawsuit is clear enough ....
It is not known, however, what the position of the FCC would
have been, or in the future will be, when confronted by the
plaintiffs' claim in a proper administrative proceeding. ...
Children shortly after leaving the cradle understand the
difference between being forced to defend against a charge
of naughtiness and being asked to consider whether they
thought they had been nice. In the latter posture their
response is much more likely to be open and forthcoming.
Human psychology does not change too much between the cradle
and the grave.

Writers Guild of America West, Inc. v. American
Broadcasting Co., Inc., 609 F.2d 355, 364 (9th Cir.
1979) (involving a similar confluence of concerns about
exhaustion and primary jurisdiction). We agree. Therefore
we affirm the district court's dismissal of the plaintiffs'
statutory claim.

C. Standing and Ripeness

The district court concluded that only one of the
plaintiffs, Infinity Broadcasting, has both standing and a
constitutional claim ripe for adjudication. 827 F. Supp. at
12-16. The Commission concedes Infinity's standing but
argues that its claim is not ripe.

We agree with the district court and the parties that
Infinity has standing. The Commission imposed a $6,000
forfeiture against Infinity in October 1992. See In the
Matter of Liability of Sagittarius Broadcasting
Corporation, 7 F.C.C. Rcd 6873 (Oct. 23, 1992),
recon. denied, 8 F.C.C. Rcd 3600 (May 20, 1993),
recon. denied, 8 F.C.C. Rcd 7975 (Nov. 10, 1993).
Keeping in mind that "[f]or purposes of ruling on a motion
to dismiss for want of standing, both the trial and
reviewing courts must accept as true all material
allegations of the complaint," Metropolitan Washington
Airports Authority v. Citizens for the Abatement of Aircraft
Noise, Inc., 501 U.S. 252, 264 (1991), we accept
Infinity's allegation that it is suffering collateral
effects of that forfeiture determination-arguably in
violation of the first amendment. Specifically, Infinity
alleges that it is "chilled" from broadcasting protected
speech for fear that the Commission will impose upon it a
new forfeiture and will increase the amount of the penalty
on the ground that Infinity has violated the indecency ban
before. In view of the substance of Infinity's complaint-
that the forfeiture scheme operates as a scheme of informal
censorship-we conclude that Infinity meets the requirements
of Article III, i.e., that it is suffering a concrete injury
traceable to the challenged conduct and likely to be
redressed by a favorable decision. See Freedom
Republicans, Inc. v. FEC, 13 F.3d 412, 415 (D.C. Cir.
1994) (citing Lujan v. Defenders of Wildlife, 112 S.
Ct. 2130, 2136 (1992)). See also Bantam Books, 372
U.S. at 64 n.6 (discussing publisher's standing to challenge
regulation by standards of which commission suspected its
books were illegal).

The Commission argues that Infinity's claim is not ripe
for adjudication because the broadcaster does not allege
sufficient hardship to justify judicial interference with an
on-going agency proceeding. The FCC also points out that at
the time Infinity filed the complaint in this case the
company was still seeking Commission reconsideration of the
forfeiture order, further undermining its claim that the
court should hear its complaint outside of the ordinary
process for review of a forfeiture order.

Ripeness turns upon two factors: "the fitness of the
issues for judicial decision and the hardship to the parties
of withholding court consideration." Abbott Laboratories
v. Gardner, 387 U.S. 136, 148-49 (1967). Infinity's
claim is a legal one, abstracted from the particular facts
of any forfeiture. There is no dispute about the working of
the procedures being challenged and there is therefore
little or nothing more that the agency could do in a
particular adjudication that would likely inform the court's
decision on the question whether the enforcement scheme is
currently being, or is capable of being, administered in
accordance with the first amendment.

Under the law of this circuit, once we have determined
that an issue is clearly fit for review, there is no need to
consider "the hardship to the parties of withholding court
consideration," Abbott Laboratories, 387 U.S. at 149,
because there would be no advantage to be had from delaying
review. See Great Lakes Transmission Limited Partnership
v. FERC, 984 F.2d 426, 431 &amp n.9 (D.C. Cir. 1993).
Denying immediate review would be particularly ironic in
this case: if Infinity has a valid claim, delay would only
exacerbate the very wrong of which it complains. A
collateral claim that certain procedures are
unconstitutional because they unduly postpone judicial
review is ripe when the claimant is adversely affected by
those procedures. Under the Commission's suggested
approach-that Infinity wait until the United States
institutes a collection proceeding in the district court
before challenging the procedures that put it there-the
broadcaster would have to wait until judicial review is at
hand before it could argue that judicial review does not
come soon enough.

Tellingly, the Commission does not argue that this
dispute would look any different, be more ripe if you will,
were we to put off review until another day. As the Supreme
Court has said:

The ultimate test of reviewability is not to be found in an
overrefined technique, but in the need of the review to
protect from the irreparable injury threatened in the
exceptional case by administrative rulings which attach
legal consequences to action taken in advance of other
hearings and adjudications that may follow, the results of
which the regulations purport to control.

Columbia Broadcasting System v. United States, 316
U.S. 407, 425 (1942). Though we ultimately conclude that
the FCC is not operating a scheme of informal censorship
like the one held unconstitutional in Bantam Books,
the possibility that the agency's actions might similarly
run afoul of the first amendment demands prompt judicial
scrutiny.

III. The Merits

At oral argument in this court, counsel for the
appellants made it clear that they are challenging the
scheme for enforcing forfeitures (for indecent broadcasts
only) both on its face and as applied. Because of the very
general nature of the statutory provisions at issue, and
because there is no individual forfeiture case before the
court, we are in no position to assess the application of
the Commission's procedures to any specific case. On the
other hand, the Commission has stipulated that its practices
in applying the forfeiture scheme in indecency cases are as
described in the record. We are being asked, therefore, to
evaluate a process that is more fleshed-out than those
courts often see in cases raising a facial challenge to a
statutory scheme that is not highly specified. See,
e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis,
480 U.S. 470, 495 (1987).

Accordingly, we shall take the appellants at their word
and answer two questions: (1) Are the statutes that
prescribe the procedures by which the Commission may impose
a forfeiture for the broadcast of indecent material capable
of constitutional application? and (2) If so, then does the
record show that the Commission is applying the statutes in
a constitutional manner?

A. The Facial Challenge

The Supreme Court has repeatedly emphasized that:

A facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances
exists under which the [Act] would be valid. The fact that
[the regulations] might operate unconstitutionally under
some conceivable set of circumstances is insufficient to
render [them] wholly invalid.

Rust v. Sullivan, 500 U.S. 173, 183 (1991) (quoting
with changes United States v. Salerno, 481 U.S. 739,
745 (1987)). With this teaching in mind, we readily reject
the appellants' claim insofar as they are arguing that the
statutory enforcement scheme is incapable of constitutional
application with regard to indecency violations. Prompt and
efficient enforcement by the Commission could surely
expedite the administrative process to an extent that leaves
ample breathing space for first amendment rights.

Certainly nothing in the statutes or regulations
prevents the Commission from issuing a NAL, imposing a
forfeiture, and if need be referring a case to the
Department of Justice all within a period of time short
enough virtually to eliminate any concern with delay. The
whole course could probably be run in most cases within,
say, 90 days. No case of this type is very complex; each
turns simply upon whether a certain broadcast was indecent.
Indeed, under the Commission's own internal guidelines,
after a broadcaster has had 30 days to respond to the NAL,
the target for imposing a forfeiture is only 60 more days.
If the FCC met this goal and then allowed the broadcaster to
stipulate that it will not pay unless ordered by a district
court to do so, then judicial review could begin almost
immediately. Cf. 47 C.F.R. § 1.822(b) (providing for
expedited FCC hearing procedures); 29 C.F.R. § 101.17,
et seq. (expedited bargaining-unit certification
procedures under the NLRA); 49 U.S.C. § 10905 (expedited
land-valuation procedures under the Interstate Commerce
Act); 18 U.S.C. § 3161, et seq. (Speedy Trial Act).
In practice, no case has moved through the pipeline that
quickly, but we are aware of no reason why the Commission
could not, in principle, act with such dispatch. Reducing
delay would also cabin the Commission's opportunity to rely
upon its own unreviewed forfeiture decisions in setting
standards of decency, thereby reducing the tendency for one
unconstitutional decision to beget others.

In short, the FCC's indecency-enforcement scheme is
clearly capable of constitutional application. Indeed, were
the administration of this scheme merely expedited it would
be indistinguishable, relative to the first amendment
concern, from the undoubtedly constitutional process whereby
the Government may bring a criminal action in district court
for a violation of 18 U.S.C. § 1464.

B. The challenge to the statutes as applied

The more difficult question is whether the statutes as
applied pass muster under the teaching Bantam Books v.
Sullivan, 372 U.S. 58 (1963). We agree with the
appellants that some of the Commission's procedures are
troubling but, on the basis of the record before us, we
cannot agree that those procedures violate the first
amendment. The centerpiece of the appellants' grievance is
that:

[B]ecause of the delays of securing administrative and
judicial determinations in indecency forfeiture proceedings,
and uncertainties as to the permissible scope of FCC
indecency regulation they attempt to conform their conduct
to the indecency standards articulated by the FCC and its
Commissioners, whether or not they believe those standards
are constitutional.

That simply does not establish a violation of the
Constitution.

In Bantam Books, Rhode Island had established a
Commission to Encourage Morality in Youth and authorized it
to determine whether publications were "objectionable for
sale, distribution or display to youths." 372 U.S. at 61.
Upon an affirmative finding, the Morality Commission would
send a letter urging the distributor of the offending
material not to carry the publication, and would refer the
matter to the local police for investigation and possible
prosecution under the state obscenity law. Id. at
62. The Supreme Court struck down this scheme because it
"amount[s] to ... governmental censorship devoid of the
constitutionally required safeguards for state regulation of
obscenity, and thus abridge[s] First Amendment liberties."
Id. at 64.

The lesson of Bantam Books is that the state may
not move to suppress speech by means of a scheme that, as a
practical matter, forecloses the speaker from obtaining a
judicial determination of whether the targeted speech is
unprotected, lest the state be able effectively to suppress
protected speech. In that case it was established, as a
matter of fact, that a notice from the Commission would
cause the distributor to cease selling the listed
publications without a judicial determination of whether the
material was legally subject to proscription. Id. at
62-64. Thus, the Court concluded, "What Rhode Island has
done, in fact, has been to subject the distribution of
publications to a system of prior administrative restraints,
since the Commission is not a judicial body and its
decisions to list particular publications as objectionable
do not follow judicial determinations that such publications
may lawfully be banned." Id. at 70.

The appellants argue that the FCC has similarly
implemented a system of "prior administrative restraint"
that, for want of appropriate procedural safeguards, forces
protected and unprotected material alike off the air.
See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965)
(striking down motion-picture censorship scheme for lack of
such safeguards). Unlike the state in Freedman,
however, the Commission is not administering anything akin
to a literal prior restraint. Broadcasters are free to air
what they want; if and only if what they air turns out to
transgress established guidelines do they face a penalty-
but that is very much after the fact, not prior thereto.
The Commission's ability to penalize a broadcaster in this
manner was upheld by the Supreme Court in Pacifica,
where the Court specifically rejected the argument that the
agency's enforcement of the ban on indecency violates the
statutory prohibition of censorship by the Commission.
See 438 U.S. at 735-38.

As the Court recognized in Bantam Books,
however, a scheme may also be a prior restraint in effect
even though specific materials are not evaluated prior to
publication (or here broadcast) if that scheme in practice
causes a speaker of reasonable fortitude to censor itself in
order to conform with an unconstitutional standard. This
case therefore turns upon the question whether the regime
that leads broadcasters to "attempt to conform their conduct
to [FCC] indecency standards" is analogous to the scheme
that forced booksellers in Rhode Island to drop publications
officially declared "objectionable" for fear of a possible
prosecution for selling obscene materials.

We cannot help but conclude that the appellants have
failed to establish any essential similarity between this
case and Bantam Books. Unlike the Rhode Island
Commission, which sought to regulate materials that could
not be proscribed as obscene, 372 U.S. at 62 n.4, so far as
this record shows the FCC is not enforcing the statutory ban
on indecency against material that is not indecent. Again
unlike the Rhode Island Commission, which could and did
avoid judicial oversight because the mere threat of
prosecution coerced booksellers into complying with its
recommendations, id. at 62 n.5, we have no indication
that the FCC has done anything actively to discourage
judicial review of any indecency forfeiture it imposed.
That no case has yet progressed to judicial review may be
the effect of any of several inoffensive causes: the
Commission has only recently stepped up its enforcement
efforts; the violators penalized thus far may very well
have broadcast the indecency as charged and thus seen no
point in contesting the forfeiture in court; and
broadcasters may be self-censoring only indecent material,
eliminating the need for many prosecutions. Indeed, some
degree of self-censorship is inevitable and not necessarily
undesirable so long as proper standards are available.
See Pacifica, 438 U.S. at 743 ("At most
[self-censorship] will deter only the broadcasting of
patently offensive references to excretory and sexual organs
and activities. While some of the references may be
protected, they surely lie at the periphery of First
Amendment concern").

Finally, there is no indication that the FCC-unlike
Rhode Island's free-roving Commission to Encourage Morality
in Youth, 372 U.S. at 70-has failed or will fail to follow
judicial guidelines for determining what is indecent and
what is not, as they have developed and will develop in
judicial decisions. The suggestion that every determination
of indecency must be a judicial one simply proves too much;
the Commission could then play no role in developing or
enforcing the Congress's declared policy of banning
indecency from the airwaves during certain hours of the day.
We have no indication that the Commission is developing a
body of precedent in any way at odds with the first
amendment, or that the agency would continue to do so in the
face of a corrective court decision. While the prospect of
a forfeiture trial may understandably cause some
broadcasters to forego judicial review of a Commission
determination that a program was indecent, we find no
indication in this record that the FCC is taking the
opportunity afforded thereby to impose unconstitutional
restrictions upon broadcast speech.

Under the statute as administered, a broadcaster need
do nothing at all until it is served with a complaint, at
which point it is entitled to a trial de novo in district
court. Nothing but the timing would be different if the
Congress were to change the current scheme so as to allow
the Commission to bring a forfeiture action in district
court immediately after the airing of an allegedly indecent
broadcast, which would be unquestionably constitutional.
The distinction, i.e., the delay inherent in the current
scheme, is of constitutional significance only if it burdens
broadcast speech that is not indecent. The parties have
stipulated that some speech is being burdened in that
broadcasters "conform their conduct to the indecency
standards articulated by the FCC ... whether or not they
believe those standards are unconstitutional." The
broadcasters would go one step farther and argue that the
delay thereby chills protected as well as indecent speech;
however, they have failed to make any such showing. 1

Alternatively, the broadcasters' claim might be more
compelling if in a particular case the Commission increased
the fine for a subsequent violation or decided not to renew
a license when the broadcaster had neither acquiesced in the
former determination of indecency nor yet had its day in
court. Such a situation creates a greater risk that
material that is not indecent is being kept off the air.
Even that, however, would still be the stuff upon which an
individual, not a generic, challenge to enforcement would be
built.

Several additional factors might also serve to
distinguish the scheme administered by the Commission from
the one struck down in Bantam Books. As the district
court noted: (1) that case concerned the printed word,
which, unlike broadcasting, has historically enjoyed the
broadest protection under the first amendment; (2) the FCC,
unlike the Rhode Island Commission, gives a putative
violator notice and an opportunity to respond to the charge
against it; (3) the decisions of the FCC are subject to
judicial review; and (4) the broadcaster that would avoid a
dispute with the FCC need only move its arguably indecent
material to a different time of day, not refrain from
broadcasting it altogether. In light of the appellants'
failure to show that speech that is not indecent is in fact
being chilled, however, we need not decide whether these
differences actually serve to distinguish the two regimes.
Still, they are points of difference, and they serve to
underscore the bottom line: The allegation that the FCC is
chilling protected speech by means of the forfeiture scheme
is not nearly as compelling as was the corresponding claim
in Bantam Books. There is no indication in the case
law that such a scheme is unconstitutional absent some
showing that the agency is forcing off the air material that
is not indecent.

IV. Conclusion

Although the appellants have failed to show that the
Commission's administration of the statute is
unconstitutional, we cannot fail to acknowledge that the
agency's practices could give rise to some of the evils that
the appellants claim are already at hand. Two avenues of
relief are available, however, to any broadcaster that in
fact comes to the grief alleged in this case. First, the
broadcaster could stipulate the facts giving rise to the
Notice of Apparent Liability and state that it will not pay
the forfeiture unless ordered to do so in district court;
the Commission could then forward the matter to the
Department of Justice immediately, so that the broadcaster
could get a trial on the merits of the forfeiture relatively
quickly.

Alternatively, if the Commission will not cooperate in
order to expedite judicial review as outlined above, then as
we noted in Pleasant Broadcasting, 564 F.2d at 502, a
broadcaster "suffering from demonstrably adverse
consequences from government delay in initiating the
collection proceeding ... could bring a declaratory judgment
action against the United States in the district court." A
broadcaster that refrains from airing material that is not
indecent because of a legitimate fear, based upon the
Commission's prior indecency cases, that it would be subject
to a forfeiture should in this way be able promptly to
dispel any unwarranted chilling effect. Its claim would
seem to be ripe for review if it is suffering a current
injury that could be remedied by a judicial determination
that the material is not indecent. In short, a broadcaster
is free to prove up, in a specific case, the general claim
that we adjudge deficient today.

For the reasons stated in Parts II and III above, the
judgment of the district court is

Affirmed.

EDWARDS, Chief Judge, concurring with
reservations: After grappling in recent months with
several cases involving the application of the First
Amendment in the context of Government regulation of
"indecent" speech in the broadcast media, see, e.g.,
Action for Children's Tel. v. FCC, 11 F.3d 170, 183-86
(D.C. Cir. 1993) (Edwards, J., concurring); Alliance for
Community Media v. FCC, No. 93-1169, slip op. at 1-8
(D.C. Cir. June 6, 1995) (en banc ) (Edwards, C.J.,
dissenting in part); Action for Children's Tel. v.
FCC, No. 93-1092, slip op. at 1-28 (D.C. Cir. June 30,
1995) (en banc ) ("ACT III ") (Edwards, C.J.,
dissenting), I have come to the conclusion that the law is
in a state of disarray. Application of the First Amendment
in this context seems to border on whimsical, for as often
as not there is little coherence in the case law. For
example, I have yet to comprehend the distinction that is
drawn between broadcast and cable television,
with broadcast stations having reduced First Amendment
rights even though cable is concededly much more responsible
for the showing of indecent programming. This is but a tip
of the iceberg, so I will not dwell on my incredulity.

I join the majority opinion, because, absent any
aspirational gloss, I believe that it is essentially correct
in stating and applying extant law. This is not to say that
the extant law makes any sense when considered carefully,
but that is a matter beyond my authority.

My concurrence comes with a caveat, however. Not
surprisingly, the majority opinion is underscored by several
references to FCC v. Pacifica Foundation, 438 U.S.
726 (1978). However, insofar as Pacifica commands a
distinction in the treatment of broadcast and cable media in
the application of the First Amendment, I think that it has
no place in our constitutional jurisprudence. See Act
III, No. 93-1092, slip op. at 6-15 (Edwards, C.J.,
dissenting). Indeed, although the Supreme Court declined to
revisit Pacifica in its recent decision in Turner
Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2456-
57 (1994), I do not understand how the two opinions can
stand together. Although I reject Pacifica, I do not
doubt that the Government can regulate "indecent" speech, so
long as "the Government's interests [are] "compelling,' and
the method of regulation chosen [is] "the least restrictive
means' to achieve those compelling interests." ACT
III, No. 93-1092, slip op. at 15 (Edwards, C.J.,
dissenting) (quoting Sable Communications, Inc. v.
FCC, 492 U.S. 115, 126 (1989)). Under this standard, I
believe that, in order to justify the regulation of
indecency, the Government must show that the "harms" it
seeks to prevent " "are real, not merely conjectural, and
that the regulation will in fact alleviate these harms in a
direct and material way.' " Id., slip op. at 22
(quoting Turner Broadcasting, 114 S. Ct. at 2470).
There is no showing of harm in this case, so I remain
doubtful about the constitutionality of sections 503(b) and
504(a) of the Communications Act, 47 U.S.C. §§ 503(b),
504(a) (1988).

At bottom, there are two reasons why the concerns that
I expressed in ACT III do not carry the day for me
here. First, the principal claim of the appellants in this
case is that the FCC's delay in enforcing the statute allows
the agency to take action against them without affording
them the procedural safeguards necessary to avoid any
abridgement of their First Amendment rights. This position
implicitly assumes that the regulation itself is
constitutionally permissible, so the points that I addressed
in ACT III do not come into play in this case.
Second, in ACT III, a majority of the en banc
court indulged a presumption that exposure to indecent
speech always is harmful to minors. I disagree with this
finding, for, in my view, it rests on a baseless
proposition. Nonetheless, ACT III is the law of the
circuit, so I am bound by the court's holding in that
decision.

I agree with the majority opinion that there are some
serious problems with the current practice followed by the
FCC in administering sections 503(b) and 504(a), and that
"the agency's practices could give rise to some of the evils
that the appellants claim are already in hand." Appellants
cannot prevail in this case, however, because they have
failed to show that speech that is not indecent is in fact
being chilled. If such a claim is supported in the future,
the parties will face a different result.

I conclude with an innocent hope that the Supreme Court
will one day soon lend some clarity to these areas of First
Amendment jurisprudence. And with that hope, I concur.

TATEL, Circuit Judge, dissenting: Because "the
line between speech unconditionally guaranteed and speech
which may legitimately be regulated ... is finely drawn,"
the Supreme Court requires the use of "sensitive tools,"
including prompt judicial review, to draw that line.
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 70
(1963) (internal quotation marks and citations omitted). As
the Court has said, "only a judicial determination in an
adversary proceeding ensures the necessary sensitivity to
freedom of expression." Freedman v. Maryland, 380
U.S. 51, 58-59 (1965). The Federal Communications
Commission certainly could implement its indecency
forfeitures under section 503(b)(4) in a constitutional
manner by allowing "judicial review [to] begin almost
immediately." Majority opinion (Maj. Op.) at 21. But it
does not. The stipulated record in this case demonstrates
that the Commission's actual implementation of the statute
is characterized by years of delay and a total lack of
judicial review: of the thirty-six FCC indecency forfeiture
orders issued since 1987, not one has been reviewed by a
court; and individual indecency forfeiture orders take from
two to seven years to get to court, if they get there at
all. Stipulations of Fact WW 19, 21, in Joint
Appendix (J.A.) at 46, 47 &amp 95-102.

The court nonetheless rejects appellants' challenge to
the FCC's indecency forfeiture enforcement scheme,
explaining that because the broadcasters have not proven the
chilling of non- indecent speech, they have failed to
demonstrate the requisite harm. See Maj. Op. at 26-
27. With all due respect, it is not clear to me how anyone
could show that non-indecent speech is unaffected by the
forfeiture scheme, since an impartial, independent Article
III court has never evaluated any of the Commission's
indecency decisions. To me, however, the constitutional
infirmity of the FCC forfeiture enforcement scheme turns not
on whether the broadcasters have explicitly alleged the
chilling of non-indecent speech-although I think such an
allegation is inherent in their First Amendment challenge to
this scheme-but on the fact that it exhibits the same basic
procedural inadequacies as the censorship scheme that the
Supreme Court found unconstitutional in Bantam Books,
Inc. v. Sullivan, 372 U.S. 58 (1963).

In Bantam Books, Rhode Island's "Commission to
Encourage Morality in Youth" was responsible for identifying
publications with "obscene, indecent or impure language."
Id. at 59-60. The Commission wrote letters to
distributors informing them of certain "objectionable"
publications within their inventory and reminding them of
the Commission's duty to report violations of the obscenity
laws to the Attorney General for prosecution. Id. at
61-62. The trial court found that distributors receiving
such letters discontinued the sale of the objectionable
materials. Id. at 63. According to the Supreme
Court, the Rhode Island Commission operated a system of
"informal censorship" of books and publications that it
found obscene or otherwise objectionable by means of
"informal sanctions-the threat of invoking legal sanctions
and other means of coercion, persuasion, and intimidation."
Id. at 67. The Court invalidated the Commission's
"radically deficient" procedures, finding that they provided
no "judicial superintendence before notices issue or even
for judicial review of the Commission's determinations of
objectionableness." Id. at 71.

Like the Rhode Island Commission to Encourage Morality
in Youth, the FCC censors speech, buttressing its informal
powers through coercion and intimidation. The Rhode Island
Commission warned that it would refer violators to the
Attorney General, id. at 62-63; the FCC threatens to
increase fines, revoke licenses, and prevent acquisition of
additional stations, see Stipulations of Fact WW 26-
27, in J.A. at 48-49. While judicial review is
possible in both schemes-a criminal obscenity prosecution
in Bantam Books and civil enforcement of FCC
forfeiture orders here-in neither case are the parties
practically able to obtain judicial review within any
reasonable time frame.

It is true that the FCC's indecency forfeiture scheme
involves a different medium of communication than the one in
Bantam Books and that it includes a late-night
safe-harbor period during which the "arguably indecent
material" may be broadcast. Maj. Op. at 27. These
differences, however, have no bearing on the fundamental
procedural flaw in the FCC's indecency forfeiture scheme.
Like the "system of prior administrative restraints"
invalidated in Bantam Books, 372 U.S. at 70, the FCC
is an administrative agency charged with evaluating the
decency of broadcasts and operating, in practice, without
judicial review. "Because the censor's business is to
censor," the Supreme Court has consistently warned that
administrative agencies "may well be less responsive than a
court-part of an independent branch of government-to the
constitutionally protected interests in free expression."
Freedman, 380 U.S. at 57-58; see Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 560-61 (1975);
see also Henry P. Monaghan, First Amendment "Due
Process," 83 Harv. L. Rev. 518, 523 (1970) (agencies
tend to have a "narrow and restricted viewpoint" that is
"particularly pernicious in the obscenity area" because
"those constantly exposed to the perverse and the
aberrational in literature are quick to find obscenity in
all they see."). When administrators have "unbridled
discretion" to suppress speech, prompt review is all the
more critical to prevent "the danger of censorship and of
abridgment of our precious First Amendment freedoms."
Conrad, 420 U.S. at 553, 560.

In my view, moreover, the FCC's indecency forfeiture
scheme poses a greater threat to free expression than the
system the Supreme Court struck down in Bantam Books.
For one thing, the FCC's forfeiture scheme regulates
indecent speech, which is protected by the First Amendment,
whereas in Bantam Books the Supreme Court addressed
the regulation of obscenity, which is not constitutionally
protected. Because a "dim and uncertain line" separated
obscenity from constitutionally protected speech, Bantam
Books held that "sensitive tools" were needed to
separate protected from unprotected speech. Bantam
Books, 372 U.S. at 66. Such tools are even more
critical where, as here, constitutionally protected speech
lies on both sides of an equally imprecise line.

Not only is judicial review unavailable, but the
Commission relies on its unreviewed indecency determinations
to impose increased penalties on broadcasters that air
material the FCC has previously declared indecent. In
several instances, the Commission has doubled and tripled
forfeitures, explaining that past violations "establish a
pattern of apparent misconduct warranting the fine we set
today," Letter to the Rusk Corp., 8 F.C.C.R. 3228,
3229 n.3 (1993); that "the violation was repeated, and ...
your past compliance history includes similar apparent
misconduct," Letter to Evergreen Media Corp., 8
F.C.C.R. 1266, 1267 (1993); and that the broadcast was
"egregious," given the Commission's prior determination that
the same material was indecent, Letter to KGB Inc., 7
F.C.C. Rcd 3207, 3207 (1992). While individual
Commissioners admonish broadcasters "to learn from the
actions that are out there," Doug Halonen, Marshall
Defines Stance on Indecency, Elec. Media, Jan. 15, 1990,
at 136, in J.A. at 93, at the same time the
Commission evaluates the decency of material on a
"case-by-case" basis, frequently rejecting broadcasters'
defense that the aired material was similar to material that
the FCC had previously chosen not to sanction, see, e.g.,
Liability of Sagittarius Broadcasting Corp., 7 F.C.C.
Rcd 6873, 6874 (1992).

Finally, unlike the "free-roving" Commission in
Bantam Books that had no regulatory control over the
distributors it targeted, the FCC controls every aspect of
the broadcaster's livelihood-indeed, its very existence.
In addition to the obvious adverse economic impact of large
fines, the parties stipulated that "the loss of a license
would be catastrophic for any broadcaster, and that a
credible threat of a revocation proceeding can seriously
impair a broadcaster's effort to raise capital."
Stipulations of Fact 29, in J.A. at 49.

The Commission's treatment of Infinity Broadcasting
Corporation demonstrates the leverage the agency has over
broadcasters, as well as its use of unreviewed indecency
determinations to impose stiff monetary penalties. The
Commission notified Infinity and one of its subsidiaries
that it intended to levy a $200,000 forfeiture on each of
three stations that broadcast the same allegedly indecent
program. Letter to Mr. Mel Karmazin, President,
Sagittarius Broadcasting Corp., 8 F.C.C. Rcd 2688, 2689
(1992). It based this unusually large fine on "the apparent
pattern of indecent broadcasting exhibited by Infinity over
a substantial period since our initial indecency warning."
Id. The Commission warned that any future failures to
comply with its indecency regulations would produce
additional sanctions, including possible revocation of
Infinity's broadcast licenses. Id. at 2690.
Commissioner Quello made this threat explicit: "We could,
for example, say "enough is enough' and set all, or some, of
Infinity's licenses for hearing to determine whether
Infinity possesses the character to continue to hold them or
whether they should be revoked. At this time-and I
underline, at this time-I am not persuaded to take
this step." Id. at 2691 (Quello, Comm'r, separate
statement). Because of Infinity's alleged indecent
programming, the Commission also seriously considered
blocking its proposed acquisition of additional stations,
but ultimately allowed the acquisition to go through at
least in part, according to one Commissioner, because
Infinity bowed to the Commission's threats and promised not
to broadcast the program containing the allegedly indecent
material on the newly acquired stations. See
Applications of Cook Inlet Radio License Partnership, 8
F.C.C. Rcd 2714, 2721 (1992) (Quello, Comm'r, concurring).
In a subsequent Notice of Apparent Liability to Infinity,
regarding material aired in a different segment of the same
program, the Commission acknowledged the extent to which the
licensee had caved in to Commission pressure, noting with
approval its efforts to conform to the FCC's view of
indecency by rigorously reviewing and modifying programs, as
well as by instituting a multiple "delay" mechanism and
requiring management-level personnel to monitor continuously
the programs as they aired. Letter to Mr. Mal Karmazin,
Infinity Broadcasting Corp., 8 F.C.C.R. 6740, 6741
(1993). But again, the Commission warned that "any future
infractions [of the indecency regulations] would place
Infinity's continuing fitness as a Commission licensee in
question." Id.

That broadcasters "attempt to conform their conduct to
the indecency standards articulated by the FCC and its
Commissioners, whether or not they believe that those
standards are constitutional," Stipulations of Fact 30,
in J.A. at 50, is thus not surprising. As the
Supreme Court recognized in Bantam Books, "[p]eople
do not lightly disregard public officers' thinly veiled
threats to institute criminal proceedings against them if
they do not come around." Bantam Books, 372 U.S. at
68. According to the record in this case, that is exactly
what broadcasters are doing: they "come around" in the face
of economic and regulatory coercion, not necessarily because
their speech is indecent, but because they cannot get
judicial review of the Commission's indecency
determinations. This manipulation of speech without
judicial review is unconstitutional.

While I enthusiastically support the suggestion that
the FCC and the Department of Justice speed things up,
see Maj. Op. at 28, I do not think this offers
broadcasters much relief since it completely depends on the
willingness of two different agencies to expedite their
actions. Nor am I reassured by the suggestion that
broadcasters are "free to prove up" their claims in an
action for a declaratory judgment, id. at 29, because
it would shift the burden of obtaining judicial review as
well as the burden of proof from the agency to the
broadcaster. "Where the transcendent value of speech is
involved," Freedman, 380 U.S. at 58 (quoting
Speiser v. Randall, 357 U.S. 513, 526 (1958)), the
government must bear "the burden of instituting judicial
proceedings, and of proving that the material is
unprotected." Conrad, 420 U.S. at 560.

I would remand the case for the district court to
establish procedures to facilitate prompt judicial review of
forfeiture determinations. Properly designed, such
procedures would not interfere with the Commission's
implementation of its Congressional mandate to regulate
indecency. Instead, they would ensure that the agency
fulfill its responsibilities within constitutional
boundaries.

Footnotes

1 Our dissenting colleague points out (at 1) that no one
can "show that non-indecent speech is unaffected by the forfeiture scheme, since an impartial,
independent Article III court has never evaluated any of the Commission's indecency decisions"; the
plaintiffs in this case, however, have failed to allege that non-indecent speech is being affected. While the
Government does have "the burden of instituting judicial proceedings, and of proving that the material is
unprotected" (dissent at 6) when it seeks to impose liability for an indecent broadcast, the broadcasters
brought this case and they had the burden of alleging a set of facts that would, if proved, entitle them to
the relief they seek. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).